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Division No. 2

CONTENTS
Addison, V.
Ailsa, M.
Allenby of Megiddo, V.
Anelay of St. Johns, B.
Ashbourne, L.
Astor of Hever, L.
Balfour, E.
Berners, B.
Birdwood, L.
Blaker, L.
Blatch, B.
Bledisloe, V.
Bowness, L.
Brentford, V.
Bridgeman, V.
Brigstocke, B.
Butterworth, L.
Byford, B.
Cadman, L.
Caithness, E.
Caldecote, V.
Campbell of Alloway, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Chelmsford, V.
Chesham, L. [Teller.]
Clanwilliam, E.
Clark of Kempston, L.
Clitheroe, L.
Colwyn, L.
Courtown, E.
Craigavon, V.
Cranborne, V. [Lord Privy Seal.]
Cumberlege, B.
Davidson, V.
Dean of Harptree, L.
Dixon-Smith, L.
Downshire, M.
Dundonald, E.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Ferrers, E.
Flather, B.
Fraser of Carmyllie, L.
Gage, V.
Gibson-Watt, L.
Goschen, V.
Greenway, L.
Griffiths of Fforestfach, L.
Halsbury, E.
Hertford, M.
Hesketh, L.
Holderness, L.
HolmPatrick, L.
Hope of Craighead, L.
Howe of Aberavon, L.
Inchcape, E.
Inglewood, L.
Jenkin of Roding, L.
Johnston of Rockport, L.
Kingsland, L.
Kinnoull, E.
Kintore, E.
Laing of Dunphail, L.
Lauderdale, E.
Liverpool, E.
Long, V.
Lucas, L.
McColl of Dulwich, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.]
Mackay of Drumadoon, L.
Macleod of Borve, B.
Massereene and Ferrard, V.
Mersey, V.
Miller of Hendon, B.
Milverton, L.
Monckton of Brenchley, V.
Monk Bretton, L.
Montagu of Beaulieu, L.
Mottistone, L.
Mountevans, L.
Mountgarret, V.
Mowbray and Stourton, L.
Munster, E.
Murton of Lindisfarne, L.
Napier of Magdala, L.
Nelson, E.
Northesk, E.
O'Cathain, B.
Onslow, E.
Orkney, E.
Orr-Ewing, L.
Oxfuird, V.
Park of Monmouth, B.
Peel, E.
Pender, L.
Perry of Southwark, B.
Platt of Writtle, B.
Rawlings, B.
Rees, L.
Renton, L.
Renwick, L.
Saltoun of Abernethy, Ly.
Seccombe, B.
Sharples, B.
Shaw of Northstead, L.
Simon of Glaisdale, L.
Slim, V.
Stewartby, L.
Strange, B.
Strathclyde, L. [Teller.]
Sudeley, L.
Swinfen, L.
Thomas of Gwydir, L.
Trumpington, B.
Ullswater, V.
Vivian, L.
Wharton, B.
Whitelaw, V.
Wilcox, B.
Wise, L.
Wynford, L.
Young, B.

NOT-CONTENTS
Addington, L.
Alderdice, L.
Beaumont of Whitley, L.
Brooks of Tremorfa, L.
Dahrendorf, L.
David, B.
Desai, L.
Donaldson of Kingsbridge, L.
Falkland, V. [Teller.]
Geraint, L.
Gladwin of Clee, L.
Grey, E.
Hamwee, B.
Harris of Greenwich, L.
Hooson, L.
Howie of Troon, L.
Jenkins of Hillhead, L.
Jenkins of Putney, L.
Kilbracken, L.
Kirkhill, L.
Lester of Herne Hill, L. [Teller.]
Lincoln, Bp.
McNair, L.
McNally, L.
Meston, L.
Methuen, L.
Perry of Walton, L.
Rea, L.
Robson of Kiddington, B.
Rochester, L.
Rodgers of Quarry Bank, L.
Taverne, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tope, L.
Tordoff, L.
Turner of Camden, B.
Varley, L.
Winchilsea and Nottingham, E.

Resolved in the affirmative, and clause, as amended, agreed to.

2 Dec 1996 : Column 516

6.18 p.m.

Clause 101 [Criminal record certificates]:

Lord Weatherill moved Amendment No. 106:

Page 40, line 25, at end insert ("except that where the application is supported by a letter from a registered charity or appropriate body confirming that the application is made in connection with the appointment of the applicant to a voluntary position for which he will receive no remuneration other than his expenses, the fee shall be waived.").

The noble Lord said: I spoke to this amendment with Amendment No. 103. I beg to move.

On Question, amendment agreed to.

Lord Lester of Herne Hill moved Amendment No. 107:

Page 40, line 36, leave out ("and cautions").

The noble Lord said: These amendments standing in the name of my noble friend Lord Rodgers of Quarry Bank seek to remove from the scope of information contained in a criminal record certificate the record of a caution.

Cautioning is an extra-statutory procedure, although it has received some statutory recognition. It was considered by the Court of Appeal in Collins v. Wilcock in 1984 in the context of the cautioning of women for loitering or soliciting for the purposes of prostitution. Lord Justice Robert Goff (as he then was), observed that the system of cautioning had been encouraged by the Home Office as a way of discouraging young women from becoming prostitutes. However, Section 2 of the Street Offences Act 1959 provides a procedure for applying to a court for an order that no entry be made on the central register in respect of a caution, and that any entry already made be expunged. That procedure, the Court of Appeal observed,

"enables a respectable woman, who has been mistakenly identified by the police as a common prostitute, to have the records corrected".

No one in your Lordships' House would doubt that the system of cautioning is a sensible one because it avoids unnecessary arrests and prosecutions, while

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serving as a deterrent against any repetition of the conduct cautioned against. But it is an official warning, not a criminal conviction, still less a punishment. It is sensible and convenient for central records to contain information about cautions. It is sensible so that the police can check before deciding whether to administer a second caution or to exercise the power of arrest.

However, it is a fact that no safeguard is contained, so far as I am aware, either in this Bill or anywhere else, equivalent to what is in Section 2 of the 1959 Act in relation to prostitutes. So we are dealing with a criminal record of information about cautions which has not been tested in the courts, which stains an individual's character and for which there is no statutory procedure to correct the record by applying to a court. I appreciate that there is a safeguard in Clause 104, but that is administrative and discretionary and does not provide, as does the 1959 Act, for an application to a court for an order to expunge the caution.

The question then is whether it is reasonably necessary to meet any pressing social need for information about cautions to be included in criminal record information given to employers under Clause 101(4). That is, for example, to those involved in the administration of justice or some professions such as health, pharmacy and law or senior managers in banking or financial services. I quote from page 10 of the White Paper.

I suppose there might be particular and highly exceptional cases in these areas in which there was a real need to communicate information about a caution. Speaking for myself, I cannot think of any and I should be very surprised if my colleagues in the Bar Council--although they often surprise me--had in any consultation considered that it was necessary for the recruitment of staff to the legal profession--or, I add, to my own chambers--that we should be given information about cautions.

In any event, in my view, the vice of Clause 101 is that it contains no statutory limitations at all on the disclosure of cautions, even where such disclosure is completely unnecessary. It seems to me that there is nothing to ensure that a sense of proportion is observed. Nor does the clause provide any effective remedy for the unnecessary or disproportionate interference with the disclosure of information which could lead to a breach of privacy.

I note with interest that the Rehabilitation of Offenders Act 1974 contains safeguards for something which is a bit more serious than a caution. I note, for example, that someone who has been absolutely discharged has a six-month rehabilitation period. Once that has been dealt with, there is no way in which an absolute discharge can form part of the criminal record. Similarly, the 1974 Act provides that if someone has been conditionally discharged or bound over to keep the peace, after a year the rehabilitation period will have been served and information about a conditional discharge or a bind over or, for that matter, a probation order, will not be permitted to be disclosed. It will be treated as spent.

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So, for the life of me, I cannot understand why there is no rehabilitation period for a caution, as I understand the Rehabilitation of Offenders Act 1974, and why the framers of this Bill have not thought fit to give protection against the unnecessary spreading of information about a caution which stains one's character and which ought to be protected at least as well as a probation order, absolute discharge or bind over. For those reasons, I hope that there will be support for the amendment from the framers of the Bill and from the Committee. I beg to move.

Baroness Blatch: It needs to be emphasised at the outset that cautions are admissions of guilt for imprisonable offences. They cannot therefore simply be disregarded as insignificant matters and may be relevant for occupations and licences for which criminal record certificates would be available.

The purpose of the criminal record certificate is to provide fuller information to those employing individuals in occupations which are exceptions to the Rehabilitation of Offenders Act 1974. Those covered by the provisions would, for example, include those working with children and vulnerable adults such as doctors, nurses and care assistants.

By virtue of making them exceptions to the Rehabilitation of Offenders Act, the Government have already indicated that full information about convictions for any offences can be requested. A caution is not, of course, a conviction. It is given at the discretion of the police; but an individual, in accepting a caution, is admitting that he or she is guilty of an offence.

If the offence is serious enough for the caution to have been recorded on the police national computer, which, broadly speaking, only contains information about offences which are imprisonable, that is a fact which in the Government's view should be made known to prospective employers and licensees. It could be both irresponsible and dangerous to deny access in all cases to that information which might cover offences such as dishonesty, violence or other behaviour which might be extremely relevant in considering someone's suitability for a position of trust.

The noble Lord, Lord Lester, referred to the situation where there was an absolute discharge. An absolute discharge is not a conviction. I take it upon me personally without consultation with anyone to say this about the other point which he made about a conditional discharge. I am not certain whether he implicitly accepts that there is either deemed guilt or admitted guilt, but nevertheless the sentence awarded in court is a conditional discharge. I believe that I should consider the point and reflect on it between now and the next stage of the Bill. However, that is not an argument for not including cautions. It might be an argument for including conditional discharges.

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